State v. Kramer, 57528

• Decision Date: 31 July 1975
• Docket Number: No. 57528,57528
• Citation: 231 N.W.2d 874
• Parties: STATE of Iowa, Appellee, v. David Randall KRAMER, Appellant.
• Court: Iowa Supreme Court

Page 874

231 N.W.2d 874

STATE of Iowa, Appellee, v. David Randall KRAMER, Appellant.

No. 57528.

Supreme Court of Iowa.

July 31, 1975.

Dennis J. Naughton, Dubuque, for appellant.

Richard C. Turner, Atty. Gen., David M. Dryer and Jim P. Robbins, Asst. Attys. Gen., Robert J. Curnan, County Atty., and Thomas J. Schrup, Asst. County Atty., for appellee.

Heard by MOORE, C.J., and REES, UHLENHOPP, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

The jury found this defendant guilty of breaking and entering, a violation of § 708.8, The Code. He was fined $25 and sentenced to the county jail for a term of eleven months. Upon his appeal from this judgment, we affirm.

On Monday morning, November 12, 1973, an employee of David Solomon Company, Dubuque, Iowa, discovered a sheet of tin had been pried loose at the back of the building used in the company's scrap metal business. A latch from a vehicle-entry door had been broken off. A large quantity of scrap metal, largely copper wire, was missing.

Police investigation revealed unusual rear tire tracks at the vehicle door, one tire being a snow tire and the other a regular tread. A small piece of blue cloth was found on the man-sized opening through the tin wall.

Later the same morning investigating officer Lindauer saw an old pickup double-parked in front of Blum Company, another scrap dealer. It had rear tire treads similar to the tracks observed at the Solomon premises. Readily observable was the load of scrap metal the open pickup carried, similar to that stolen from Solomons.

Defendant approached the pickup wearing a blue hooded jacket with a tear in the sleeve. Responding to Lindauer's questions, he admitted the jacket and the pickup were his. Defendant was then arrested and placed in jail. Within a three hour period and before he was taken before a magistrate, his jacket was taken from him. When he was released from jail defendant was told he could have his truck back, absent the two rear tires and the scrap metal removed by the police.

At trial, over defendant's objections, a written report from the Iowa criminalistics laboratory was introduced into evidence. The report carried a laboratory technician's opinion that the blue piece of cloth recovered at the Solomon break-in 'was at one time a portion' of defendant's jacket.

Defendant does not challenge the sufficiency of the evidence to support his conviction. He raises eight issues for reversal, discussed below in separate divisions.

I. Did trial court err by refusing to submit defendant's requested 'character' instruction?

Defendant's former landlord testified defendant's character was 'good' in the community. On the basis of this testimony defendant proposed an instruction explaining the legal effect of character evidence and requested trial court to so instruct the jury. Trial court refused on the grounds it was unclear whether the testimony related to character or reputation, and in any event the testimony did not relate to the particular character traits involved in the crime charged. See State v. Hobbs, 172 N.W.2d 268, 271 (Iowa 1969). No exception was taken to this ruling although opportunity was afforded to do so.

In our view trial court's ruling was correct. In any event, defendant waived review of this issue by his failure to except to the court's failure to submit the instruction. See State v. Feddersen, 230 N.W.2d 510 (Iowa 1975).

II. Did trial court abuse its discretion in overruling defendant's motion to suppress testimony of two witnesses when notice of their testimony was served on defendant's attorney rather than defendant?

Trial commenced April 29, 1974, as scheduled. On April 24, 1974, notice of the testimony of two additional witnesses was delivered to the sheriff's office for service. Records from that office indicate an attempt to serve defendant on August 24. The next morning, August 25, deputy sheriff Neuhaus talked to defendant's mother. She said defendant was not at home and she had no idea where he had gone. He then served defendant's attorney.

Defendant's pre-trial motion to suppress the testimony of these two witnesses alleged the State failed to comply with § 781.10, The Code, there being no showing of a diligent effort to serve defendant. A hearing developed the above information relative to service. The State does not dispute the propriety of raising this issue by a motion to suppress.

The notice given defendant's attorney was timely. Section 4.1(22), The Code; State v. Bradley, 254 Iowa 211, 217, 116 N.W.2d 439, 442--443 (1962); see State v. King, 225 N.W.2d 337, 342 (Iowa 1975). The sole issue is due diligence.

In State v. Bruno, 204 N.W.2d 879, 885--886 (Iowa 1973) we set out the substance of § 780.10 and stated 1) the purpose of the section is to inform defendant of the witnesses against him and the substance of their testimony, 2) service on record counsel is authorized if the officer made a diligent but futile search for defendant, 3) the State need not show defendant was outside the county, 4) trial court has wide discretion in determining whether due diligence was employed, and 5) this court will not interfere unless an abuse of discretion appears.

The record before us shows two attempts to serve defendant. During the second attempt (on the last day permitted under § 780.10) the deputy sheriff, despite informing defendant's mother of his purpose, was unable to obtain any information as to defendant's whereabouts or his expected time of return. Trial court did not abuse its wide discretion in holding the deputy was then justified in serving defense counsel under the § 780.10 alternative.

III. Did trial court err by overruling defendant's motion to suppress the evidentiary use of defendant's jacket?

Defendant's pre-trial motion to suppress stated as grounds: 1) State's failure to give him a receipt for the jacket, 2) violation of § 751.37, The Code, and 3) violation of his constitutional right to be free from unreasonable searches and seizures.

However desirable such a practice might be as a matter of fairness and recordkeeping, there is no statutory authority requiring issuance of a receipt for items taken in a Warrantless seizure. Section 751.13, The Code (officer taking property Under a warrant, must On demand, give a receipt). Nor is there any evidence defendant ever demanded a receipt. While State v. Wenks, 200 Iowa 669, 202 N.W. 753 (1925) (holding failure to give receipt does not furnish grounds for suppression) was decided at a time when Amendment 4, United States Constitution, was not applicable to the states, we have not found, nor has defendant cited, any authority to support a theory such a ministerial act rises to constitutional significance.

Defendant next asserts a warrantless seizure of his jacket could only be effected under § 751.37, The Code:

'When a person charged with an offense is supposed by the magistrate before whom he is brought to have upon his person a dangerous weapon, or anything which may be used as evidence of the commission of the offense, the magistrate may direct him to be searched in his presence, and the weapon or evidence to be retained, subject to his order, or the order of the court in which the defendant may be tried.'

Defendant appears to claim § 751.37 prohibits searches of, and seizures from, an arrested individual's person until he is taken before a magistrate. Such an interpretation would allow prisoners to retain destructible evidence or dangerous weapons until brought before a magistrate. This would violate our rule of statutory construction which requires us, if possible, to avoid conclusions which lead to absurd results. See Steinbeck v. Iowa Dist. Ct. in and for Linn County, 224 N.W.2d 469, 476 (Iowa 1974).

We view § 751.37 as providing an additional exception to the rule that ordinarily a warrant is a prerequisite to a valid search and seizure. Cf. Wessling v. Bennett, 290 F.Supp. 511, 518 (N.D.Iowa 1968), aff'd, 410 F.2d 205 (8 Cir. 1969), cert. denied, 396 U.S. 945, 90 S.Ct. 384, 24 L.Ed.2d 248 (1969).

Finally, we hold the warrantless seizure of defendant's jacket within two or three hours following his arrest and while he continued in custody did not violate his constitutional rights. This situation falls within the 'search incident to an arrest' exception to the general requirement of a search warrant. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); State v. Wessling, 260 Iowa 1244, 1254--1255, 150 N.W.2d 301, 307 (1967); State v. Raymond, 258 Iowa 1339, 1346--1347, 142 N.W.2d 444, 448--449 (1966).

IV. Did trial court err in overruling defendant's motion to suppress the evidentiary use of tires from his pickup?

We have already noted defendant double-parked his pickup in a public street the morning after the break-in. The investigating officer saw on the open bed of the truck scrap metal similar to that stolen at Solomons. He observed the two rear tires would make the distinctive tracks found at the site of the theft.

Following defendant's arrest the pickup was taken to the police station where the two tires were removed and held for evidence.

Defendant first argues his motion to suppress evidentiary use of the tires should have been sustained because he was not given a receipt upon their seizure. We have adversely disposed of an identical issue in division III.

But defendant also contends his fourth amendment rights were violated by a 'search' of his pickup and seizure of his tires. He cites authorities indicating this situation does not squarely fall within the warrantless search exceptions of search incident to an arrest, the Carroll doctrine, or 'plain view.'

Nonetheless, we are convinced the 'search' in this instance, and the tire seizure, escape constitutional interdiction through the rationale in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). There the defendant parked his car in a public lot and went to a police station where he...